Flood v. Attsgood Realty Co.
| Decision Date | 01 September 1991 |
| Docket Number | No. 1698,1698 |
| Citation | 92 Md.App. 520,608 A.2d 1297 |
| Parties | Rounsaville FLOOD v. ATTSGOOD REALTY COMPANY. , |
| Court | Court of Special Appeals of Maryland |
Martin F. Cadogan, Baltimore, for appellant.
Francis B. Buckley, Baltimore, for appellee.
Argued before WILNER, C.J., and CATHELL and DAVIS, JJ.
On April 25, 1989 in the Circuit Court for Baltimore City, Rounsaville Flood, appellant, filed a Complaint and Demand for a Jury Trial against Attsgood Realty Company, appellee, alleging that he suffered injury on the appellee's property on August 28, 1987. The appellant is a Baltimore City police officer who claimed that he was injured when he fell through the floor of the appellee's building while searching for a drug suspect.
The appellee answered in a timely fashion and subsequently filed a Motion for Summary Judgment. The appellant filed an Opposition to the appellee's Motion for Summary Judgment.
After a hearing on July 15, 1991, the trial court granted the appellee's motion for summary judgment. The appellant now asks that we review
whether the court erred in granting the appellee's Motion for Summary Judgment, by determining if the appellee landowner engaged in wilful and wanton misconduct that injured the appellant, instead of allowing the jury to decide such a question of fact?
On August 28, 1987, the appellant, a Baltimore City Police Officer, received information from a citizen regarding possible narcotics activity occurring inside 1542 Abbotston Street. That property was owned by the appellee.
The appellant, along with other officers, entered the premises to investigate. The building appeared vacant and uninhabitable with several windows broken out, a side door that was hanging open, and no back door. Evidence of drug usage was visible throughout the building. The appellant went to the second floor of the building to investigate and noticed a visible hole in the flooring. The appellant successfully avoided that hole. The appellant's partner called to him, and as he ran to assist, the appellant stepped on a large piece of gray plywood. Unbeknownst to the appellant, the plywood covered yet another opening in the second story flooring. The plywood gave way, and the appellant fell through the opening and was injured.
The owner of the property denied any knowledge of the opening in the floor or the fact that the opening was covered with thin plywood. Eugene D. Goodman, president of Attsgood Realty, admitted that he had never actually visited the property prior to the time of this incident and could provide relatively little information regarding it.
Maryland Rule 2-501, provides:
(a) Motion.--Any party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law. The motion shall be supported by affidavit if filed before the day on which the adverse party's initial pleading or motion is filed.
Judge Rosalyn Bell, writing for this Court, noted:
The purpose of the summary judgment procedure is to dispose of cases where there is no genuine factual controversy. Summary judgment is not, however, designed as a substitute for trial, but a hearing to determine whether a trial is necessary. "The critical question for the trial court on the motion for summary judgment is whether there exists a genuine dispute as to a material fact and, if not, what the ruling of law should be upon those undisputed facts."
Laws v. Thompson, 78 Md.App. 665, 674, 554 A.2d 1264 (1989) (citations omitted).
Recovery in an action for negligence requires proof of some duty, a breach of that duty, proximate causation, and damages. In the present case, for us to disturb the trial court's ruling on appeal, the appellant must show that there was either a genuine dispute as to a material fact involving at least one of the above elements or that appellee was not entitled to judgment. As we shall explain, we perceive no legally cognizable factual dispute from the record before us; and from the undisputed facts alleged, appellee was entitled to judgment as a matter of law.
As appellant correctly observes, the duty owed to a person by an owner or occupant of land is determined by that person's purpose for being on the property. Maryland Courts have, on numerous occasions, considered, in premises liability cases, whether the status of the plaintiff on the property of the defendant was that of trespasser, invitee, or licensee. The Court of Appeals in Sherman v. Suburban Trust Co., 282 Md. 238, 242, 384 A.2d 76 (1978), explained:
An invitee is in general a person invited or permitted to enter or remain on another's property for purposes connected with or related to the owner's business; the owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect him from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover. A licensee is generally defined as one who enters the property with the knowledge and consent of the owner but for his own purposes or interest; the owner owes no duty to a licensee under the traditional common law view except to abstain from wilful or wanton misconduct or entrapment. [Citations omitted.]
Traditionally, police officers and fire fighters are held to be licensees when they enter property in the performance of their duties, and as such, the property owner or occupant owes only the duty to abstain from wilful or wanton conduct. The Sherman Court went on to explain that the reason police officers and fire fighters were considered licensees was that "they were likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, where care in preparing for the visit cannot be expected and a duty to make the premises reasonably safe for them at all times would constitute a severe burden." Id., 282 Md. at 243, 384 A.2d 76.
As a licensee, the duty owed to the appellant was to abstain from wilful and wanton conduct or entrapment. The appellee would only be able to engage in such conduct, thus breaching his duty, to the extent that the appellee knew of the appellant's presence on the premises. No evidence was adduced that the appellee was aware of the defect or the appellant's presence on the premises, and therefore no duty was owed to the appellant.
The modern trend, however, adopts a public policy approach rather than a strict territorial or geographic approach in determining the status of an officer or fire fighter on land. The Court of Appeals has most recently articulated the modern trend in Flowers v. Rock Creek Terrace, 308 Md. 432, 520 A.2d 361 (1987). In Flowers, a volunteer fire fighter fell down an open twelve story elevator shaft while responding to a fire. The fire fighter...
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